Algo Enterprises Ltd. et al. v. Repap New Brunswick Inc., (2013) 406 N.B.R.(2d) 36 (TD)

• Judge: Walsh, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: May 13, 2013
• Jurisdiction: New Brunswick
• Citations: (2013), 406 N.B.R.(2d) 36 (TD);2013 NBQB 176

Algo Ent. Ltd. v. Repap N.B. Inc. (2013), 406 N.B.R.(2d) 36 (TD);

    406 R.N.-B.(2e) 36; 1053 A.P.R. 36

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.B.R.(2d) TBEd. JL.040

Renvoi temp.: [2013] N.B.R.(2d) TBEd. JL.040

Algo Enterprises Ltd. and NBP Enterprises Inc. (plaintiffs) v. Repap New Brunswick Inc. (defendant)

(N/C/19/07; 2013 NBQB 176; 2013 NBBR 176)

Indexed As: Algo Enterprises Ltd. et al. v. Repap New Brunswick Inc.

Répertorié: Algo Enterprises Ltd. et al. v. Repap New Brunswick Inc.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Walsh, J.

May 28, 2013.

Summary:

Résumé:

During the trial of its breach of contract action, the plaintiff sought to amend its statement of claim.

The New Brunswick Court of Queen's Bench, Trial Division, granted the motion. The defendant was awarded all inclusive costs of the motion of $11,000.

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - What constitutes - During the trial of its breach of contract action, the plaintiff sought to amend its statement of claim - The New Brunswick Court of Queen's Bench, Trial Division, in granting the motion, stated, "... the only question ... is this: would the amendment prejudice the Defendant to an extent that it could not be remediated by, for example, an appropriate award of costs and/or an adjournment? ... [P]rejudice cannot be equated with the other side's disappointment that the claim originally advanced (or was perceived to be advanced) was more readily defended in the law, or because of the expense, inconvenience and delay now caused, or, indeed, because of this Court's frustration with the bifurcation of these proceedings and the loss of valuable court time brought on by the inexcusable timing of the Motion. These 'unfairness' concerns can be addressed by costs and adjournments. Rather, ... the concept of prejudice must mean more than that; it must in some way relate to the ability or, more accurately, the inability to fairly meet the case against them, regardless of when or why advanced." - See paragraphs 33 and 34.

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - What constitutes - During the trial of its breach of contract action, the plaintiff sought to amend its statement of claim - The New Brunswick Court of Queen's Bench, Trial Division, in granting the motion, stated, "The raison d'être of the modern law on amending pleadings is to procedurally facilitate, to ensure as much as possible that claims made under the substantive law are heard and decided; a fortiori, prejudice in the context of amendments sought by plaintiffs and applicants must mean serious impairment of the right and ability of defendants and respondents to defend against any such substantive law claims." - See paragraph 35.

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - What constitutes - The plaintiff worked for the defendant under logging agreements that covered a particular contract season - At the end of the 2001 season, the plaintiff was told by phone that it was no longer needed as a contractor - In 2007, the plaintiff sued, seeking approximately $1.5 million in damages - Paragraph 6 of the statement of claim alleged that "[i]n refusing to renew the contract", the defendant had failed to meet the contract's good faith requirements - Paragraph 8 asserted that clause 16(b) of the contract, which provided a right to terminate on three days' written notice, should be struck for vagueness and uncertainty - During the trial, the plaintiff moved to amend paragraph 6 by substituting "[i]n terminating the contract" for "[i]n refusing to renew" and to remove paragraph 8 - The plaintiff asserted that the amendment was necessary to clarify the claim - The New Brunswick Court of Queen's Bench, Trial Division, granted the motion - The court noted that the events giving rise to the litigation occurred 13 years previously and that the defendant's corporate presence in the jurisdiction ended six years previously - However, the court rejected the defendant's assertion that it would be prejudiced by the amendment because essential witnesses were no longer available - There was no proof that the amendment would probably deprive the defendant of a defence that would otherwise have been unavailable - The defendant had not met the onus to show that it would be incurably prejudiced by the amendment - See paragraphs 36 to 41.

Practice - Topic 2116

Pleadings - Amendment of pleadings - With conditions - The plaintiff worked for the defendant under logging agreements that covered a particular contract season - At the end of the 2001 season, the plaintiff was told by phone that it was no longer needed as a contractor - In 2007, the plaintiff sued, seeking approximately $1.5 million in damages - Paragraph 6 of the statement of claim alleged that "[i]n refusing to renew the contract", the defendant had failed to meet the contract's good faith requirements - Paragraph 8 asserted that clause 16(b) of the contract, which provided a right to terminate on three days' written notice, should be struck for vagueness and uncertainty - During the trial, the plaintiff moved to amend paragraph 6 by substituting "[i]n terminating the contract" for "[i]n refusing to renew" and to remove paragraph 8 - The plaintiff asserted that the amendment was necessary to clarify the claim - The New Brunswick Court of Queen's Bench, Trial Division, granted the motion and the defendant's request for costs of the motion - Fault rested substantially with the plaintiff - However, the court rejected the defendant's assertion that the payment of costs should be a condition of the amendments being granted - That would defeat the objective of rule 27.10, which was to ensure that cases were heard on their merits - See paragraph 52.

Practice - Topic 2120

Pleadings - Amendment of pleadings - Statement of claim - General - [See third Practice - Topic 2105 ].

Practice - Topic 2134

Pleadings - Amendment of pleadings - At trial - After evidence taken - [See third Practice - Topic 2105 ].

Practice - Topic 5066

Conduct of trial - Adjournments - Adjournment to prepare evidence for trial - The plaintiff worked for the defendant under logging agreements that covered a particular contract season - At the end of the 2001 season, the plaintiff was told by phone that it was no longer needed as a contractor - In 2007, the plaintiff sued, seeking approximately $1.5 million in damages - Paragraph 6 of the statement of claim alleged that "[i]n refusing to renew the contract", the defendant had failed to meet the contract's good faith requirements - Paragraph 8 asserted that clause 16(b) of the contract, which provided a right to terminate on three days' written notice, should be struck for vagueness and uncertainty - During the trial, the plaintiff moved to amend paragraph 6 by substituting "[i]n terminating the contract" for "[i]n refusing to renew" and to remove paragraph 8 - The plaintiff asserted that the amendment was necessary to clarify the claim - The New Brunswick Court of Queen's Bench, Trial Division, granted the motion and the defendant's request for an adjournment to conduct further discovery of the plaintiff and to prepare - This was only fair in the circumstances - See paragraphs 42 and 43.

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - During the trial of its breach of contract action, the plaintiff sought to amend its statement of claim - The New Brunswick Court of Queen's Bench, Trial Division, in granting the motion, stated that the defendant's position that it should receive a significant award of costs had merit - The court noted that "... trial judges are under a very heavy duty to permit amendments to pleadings whenever and however made and regardless of fault. Without more, such an approach could only foster lack of care and attention in drafting, impair the court's ability to manage and timely resolve cases, contribute to the over-burdening of an already taxed system of justice, add to the spiraling costs of litigation and risk impacting on the repute of the administration of justice. The counter weight needs to be the court's discretion not only to compensate to some degree but also to deter." - See paragraph 47.

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - The plaintiff worked for the defendant under logging agreements that covered a particular contract season - At the end of the 2001 season, the plaintiff was told by phone that it was no longer needed as a contractor - In 2007, the plaintiff sued, seeking approximately $1.5 million in damages - Paragraph 6 of the statement of claim alleged that "[i]n refusing to renew the contract", the defendant had failed to meet the contract's good faith requirements - Paragraph 8 asserted that clause 16(b) of the contract, which provided a right to terminate on three days' written notice, should be struck for vagueness and uncertainty - During the trial, the plaintiff moved to amend paragraph 6 by substituting "[i]n terminating the contract" for "[i]n refusing to renew" and to remove paragraph 8 - The plaintiff asserted that the amendment was necessary to clarify the claim - The New Brunswick Court of Queen's Bench, Trial Division, granted the motion and the defendant's request for costs of the motion - In rejecting the defendant's request for costs of $18,875 plus HST on a solicitor and own client basis, the court stated, "... the Defendant is entitled to some reasonable measure of compensation that also acts as a specific and a general deterrent. In other words, substantial indemnity is called for - fairness to the Defendant and protection for the efficient and orderly administration of justice requires it." - The defendant was awarded all inclusive costs of $11,000 - See paragraphs 53 to 56.

Practice - Topic 7408

Costs - Solicitor and client costs - General principles - Solicitor and client costs as damages or punishment - [See second Practice - Topic 7364 ].

Practice - Topic 7470.6

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Interlocutory proceedings - [See second Practice - Topic 7364 ].

Practice - Topic 7803

Costs - Solicitor and his own client costs - Entitlement to - General - [See second Practice - Topic 7364 ].

Procédure - Cote 2105

Plaidoiries - Modification des plaidoiries - Préjudice réel ou présumé - En quoi consiste - [Voir Practice - Topic 2105 ].

Procédure - Cote 2116

Plaidoiries - Modification des plaidoiries - Avec les conditions - [Voir Practice - Topic 2116 ].

Procédure - Cote 2120

Plaidoiries - Modification des plaidoiries - Exposé de la demande - Généralités - [Voir Practice - Topic 2120 ].

Procédure - Cote 2134

Plaidoiries - Modification des plaidoiries - Au procès - Après l'audition de la preuve - [Voir Practice - Topic 2134 ].

Procédure - Cote 5066

Conduite du procès - Ajournements - Ajournements pour la préparation d'une preuve pour le procès - [Voir Practice - Topic 5066 ].

Procédure - Cote 7364

Dépens - Dépens relatifs aux procédures interlocutoires - Dépens relatifs aux motions et aux requêtes - [Voir Practice - Topic 7364 ].

Procédure - Cote 7408

Dépens - Frais entre avocat et client - Principes généraux - Frais entre avocat et client à titre de dommages-intérêts ou de sanction - [Voir Practice - Topic 7408 ].

Procédure - Cote 7470.6

Dépens - Frais entre avocat et client - Droit aux frais entre avocat et client - Procédures interlocutoires - [Voir Practice - Topic 7470.6 ].

Procédure - Cote 7803

Dépens - Frais dits avocat et son propre client - Droit - Généralités - [Voir Practice - Topic 7803 ].

Cases Noticed:

Georgian Windpower Corp. et al. v. Stelco Inc., [2012] O.T.C. Uned. 3759; 2012 ONSC 3759, refd to. [para. 13].

Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860; 262 N.R. 285; 2000 SCC 60, refd to. [para. 13].

Doucet et al. v. Spielo Manufacturing Inc. et al. (2011), 372 N.B.R.(2d) 1; 961 A.P.R. 1; 2011 NBCA 44, refd to. [para. 14].

Transamerica Life Canada Inc. et al. v. ING Canada Inc., [2003] O.A.C. Uned. 565; 234 D.L.R.(4th) 367 (C.A.), refd to. [para. 16].

Triathlon Leasing Inc. v. Juniberry Corp. and Hong (1995), 157 N.B.R.(2d) 217; 404 A.P.R. 217 (C.A.), refd to. [para. 18].

Moore v. State Farm Fire & Casualty Co. (1982), 42 N.B.R.(2d) 667; 110 A.P.R. 667 (C.A.), refd to. [para. 19].

Béchard v. Ouellet (1999), 210 N.B.R.(2d) 246; 536 A.P.R. 246 (C.A.), refd to. [para. 20].

Modern Construction (1983) Ltd. v. Enbridge Gas New Brunswick Inc. et al. (2003), 264 N.B.R.(2d) 145; 691 A.P.R. 145; 2003 NBCA 78, refd to. [para. 21].

Celeste v. Celeste, [2013] N.B.R.(2d) Uned. 11; 2013 NBQB 41 (Fam. Div.), refd to. [para. 21].

Lévesque v. New Brunswick et al. (2011), 372 N.B.R.(2d) 202; 961 A.P.R. 202; 2011 NBCA 48, refd to. [para. 21].

Lawson v. Poirier (1995), 159 N.B.R.(2d) 212; 409 A.P.R. 212 (T.D.), refd to. [para. 23].

Givskud et al. v. Kavanaugh et al. (1994), 147 N.B.R.(2d) 1; 375 A.P.R. 1 (T.D.), refd to. [para. 23].

McLaughlin v. Levesque (2008), 337 N.B.R.(2d) 283; 864 A.P.R. 283 (T.D.), refd to. [para. 23].

Kings Gate Developments Inc. v. Colangelo et al. (1994), 70 O.A.C. 140 (C.A.), refd to. [para. 34].

Parlee v. McFarlane (1999), 210 N.B.R.(2d) 284; 536 A.P.R. 284 (C.A.), refd to. [para. 46].

1465778 Ontario Inc. et al. v. 1122077 Ontario Ltd. et al. (2006), 216 O.A.C. 339; 82 O.R.(3d) 757; 275 D.L.R.(4th) 321 (C.A.), refd to. [para. 49].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161, refd to. [para. 49].

Moyal v. Hawa et al., [2004] O.T.C. Uned. 748 (Sup. Ct.), refd to. [para. 51].

Milemore Holdings Ltd. v. Grew et al. (2013), 405 N.B.R.(2d) 1; 1050 A.P.R. 1; 2013 NBQB 158, refd to. [para. 52].

Authors and Works Noticed:

Waddams, S.M., The Law of Contracts (5th Ed.), pp. 45, 46 [para. 13].

Counsel:

Avocats:

Rodney J. Gillis, Q.C., (on January 8th) and Andrew Valeri (on May 13th), for the plaintiffs;

Debora M. Lamont, for the defendant.

This motion was heard on January 8 and May 13, 2013, by Walsh, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following ruling on May 28, 2013.